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Constitution as Catharsis Mexico’s revolutionary constitution

Latin American Law. Constitution as Catharsis Mexico’s revolutionary constitution. Last updated 10 Oct 11. Constitutionalism in Latin America … . Compare to codification in Latin America . Dominican Republic (2002). US Constitution (1791). Cuba (1976). Mexico (1917). Puerto Rico

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Constitution as Catharsis Mexico’s revolutionary constitution

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  1. Latin American Law Constitution as CatharsisMexico’s revolutionary constitution Last updated 10 Oct 11

  2. Constitutionalism in Latin America … Compare to codificationin Latin America

  3. Dominican Republic (2002) US Constitution (1791) Cuba (1976) Mexico (1917) Puerto Rico (1952) Guatemala (1985) Honduras (1982) Venezuela (1999) El Salvador (1983) Colombia (1991) Nicaragua (1987) Ecuador (1998) Costa Rica (1949) Panama (1972) Peru (1993) Brazil (1988) Bolivia (1967) Paraguay (1992) Chile (1980) Uruguay (1967) Argentina (1994) Have you heard the one about the economist, the priest and the lawyer …

  4. "John Marshall has made his decision; now let him enforce it!" Andrew Jackson (1832)

  5. Bienvenidos a México …

  6. Mexico • Demographics • Population - 106.4 million (2005) • Language- Spanish • Urban Population - 74.6 % • Average age - 22 years • Annual Population Growth Rate - 1.85% (1990-2000) • Surface area- 1.964 million sq. Km • Life Expectancy - 73.6  years (2003) • Literacy rate - 90.5 % (2002) • Politics • Federal State - Federal District, 31 sovereign States. • Head of State- President Felipe Calderon Hinojosa • National Holiday – Independence Day. Sep 16, 1810

  7. Mexican Constitution (1917) …

  8. Constitutional treatment of foreigners? • President • Political affairs • Public sector • Clergy • Property ownership • Within 50 km of ocean • Expel w/o due process • Sam Wellborn David Alfaro Siqueiros, From the Dictatorship of Porfirio Diaz to the Revolution—The People in Arms (detail), 1957–65

  9. Mexican Constitution (1917) Porfirio Diaz (1830-1915) Venustiano Carranza (1859-1920) “Revolution as catharsis”? Sam Wellborn

  10. Personal liberties vs. personal welfare • US Constitution (1791) • Preamble ["We the people...."] • Art I [The Legislative Branch] • ..Sec 1. [Legislative Power Vested] • ..Sec 2. [House of Representatives] • ..Sec 3. [Senate] • ..Sec 4. [Elections of Senators, Representatives] • ..Sec 5. [Rules of House and Senate] • ..Sec 6. [Compensation and Privileges of Members] • ..Sec 7. [Passage of Bills] • ..Sec 8. [Scope of Legislative Power] • ..Sec 9. [Limits on Legislative Power] • ..Sec 10. [Limits on States] • Art II [The Presidency] • ..Sec 1. [Election, Installation, Removal] • ..Sec 2. [Presidential Power] • ..Sec 3. [State of the Union, Receive Ambassadors, Laws Faithfully Executed, Commission Officers] • ..Sec 4. [Impeachment] • Art III [The Judiciary] • ..Sec 1. [Judicial Power Vested] • ..Sec 2. [Scope of Judicial Power] • ..Sec 3. [Treason] • Art IV [The States] • ..Sec 1. [Full Faith and Credit] • ..Sec 2. [Privileges and Immunities, Extradition, Fugitive Slaves] • ..Sec 3. [Admission of States] • ..Sec 4. [Guarantees to States] • Art V [The Amendment Process] • Art VI [Legal Status of the Constitution] • Art VII [Ratification] • Amendments Mexico Constitution (1917) TITLE I Ch I Individual Guarantees Ch II Mexicans Ch III Foreigners Ch IV Mexican Citizens TITLE II Ch I National Sovereignty Form of Government Ch II Elemental Parts of Federation, National Territory TITLE III Ch I Division of Powers Ch II The Legislative Branch Sec I Election, Installation of Congress Sec II Introduction, Enactment of Laws Sec III Powers of Congress Sec IV The Permanent Committee Ch III The Executive Branch Ch IV The Judicial Branch TITLE IV Responsibilities of Public Officials TITLE V The States of the Federation TITLE VI Labor and Social Security TITLE VII General Considerations TITLE VIII Amendments to the Constitution TITLE IX The Inviolability of the Constitution Winslow Taylor

  11. US Constitution has remained intact – only 27 amendments in 224 year history (0.1/year). Mexico’s constitution has been amended 147 times from 1917-2000 (1.8/year) and another 49 times from 2000-2011 (4.5/year). Pros and cons?What explains?Sam Wellborn Panama had 9 constitutions from 1841 to 1875 when it was part of Colombia, and another four (1904, 1941, 1946, 1972) since independence.LatAm constituions are the result of independence and national organization movements.Joel De Leon

  12. TITLE VILabor and Social Security • (54) An employer who dismisses a worker without justifiable cause or because he has entered an association or union, or for having taken part in a lawful strike, shall be required, at the election of the worker, either to fulfill the contract or to indemnify him to the amount of three months' wages. The law shall specify those cases in which the employer may be exempted from the obligation of fulfilling the contract by payment of an indemnity. He shall also have the obligation to indemnify a worker to the amount of three months' wages, if the worker leaves his employment due to lack of honesty on the part of the employer or because of ill treatment from him, either to himself or to his wife, parents, children, or brothers and sisters. An employer may not relieve himself of this responsibility when the ill treatment is attributable to his subordinates or members of his family acting with his consent or tolerance. • Credits in favor of workers for wages or salary earned within the last year, and for indemnity compensation, shall have priority over all other obligations in the event of receivership or bankruptcy. • A worker alone shall be responsible for debts contracted by himself and payable to his employer, his associates, members of his family, or dependents, and in no case and for no purpose may payment be exacted from members of the worker's family, nor are these debts demandable for an amount exceeding the wages of the worker for one month. • Services of employment placement for workers shall be gratuitous, whether such service is performed by a municipal office, labor exchange, or any other official or private institution. • Every labor contract made between a Mexican and a foreign employer must be notarized by a competent municipal authority and countersigned by the consul of the nation to which the worker intends to go, because, in addition to the ordinary stipulations, it shall be clearly specified that the expenses of repatriation shall be borne by the contracting employer. • The following conditions shall be considered null and void and not binding on the contracting parties, even if expressed in the contract: • Those that stipulate a day's work that is inhuman because it is obviously excessive, considering the kind of work; • Those that fix wages that are not remunerative, in the judgment of Boards of Conciliation and Arbitration; • Those stipulating a period of more than one week before payment of a day's wages; • Those indicating as the place of payment of wages a place of recreation, an inn, café, tavern, bar, or store, except for the payment of employees of such establishments; • Those that include the direct or indirect obligation of acquiring consumer goods in specified stores or places; • Those that permit the retention of wages as a fine; • Those that constitute a waiver by the worker of indemnification to which he is entitled due to labor accidents or occupational diseases, damages occasioned by the nonfulfillment of the contract, or by being discharged; • All other stipulations that imply waiver of any right designed to favor the worker in the laws of protection and assistance for workmen; • The laws shall determine what property constitutes the family patrimony, property that shall be inalienable, not subject to encumbrances of attachment, and that shall be transmissible by inheritance with simplification of the formalities of succession. • Enactment of a social security law shall be considered of public interest and it shall include insurance against disability, on life, against involuntary work stoppage, against sickness and accidents, and other forms for similar purposes; • Likewise, cooperative societies established for the construction of low-cost and hygienic houses to be purchased on installments by workers, shall be considered of social utility; • (55) Enforcement of the labor laws belongs to the authorities of the States, in their respective jurisdictions, but it is the exclusive jurisdiction of the federal authorities in matters relating to the textile, electrical, motion picture, rubber, sugar, mining, petrochemical, metallurgical, and steel industries, including the exploitation of basic minerals, their processing and smeltering, as well as the production of iron and steel in all their forms and alloys and rolled products, hydrocarbons, cement, railroads, and enterprises that are administered directly or in decentralized form by the federal Government; enterprises that operate by virtue of a federal contract or concession, and connected industries; enterprises that carry on work in federal zones and territorial waters; disputes that affect two or more federal entities; collective contracts that have been declared obligatory in more than one federal entity, and finally, obligations that in educational matters belong to employers in the manner and form fixed by the respective law. • (56) The branches of the Union, the governments of the Federal District and of the federal Territories and their workers: • The maximum working day for day and nightwork shall be eight and seven hours respectively. Those in excess will be overtime and will be paid by a one hundred percent addition to the remuneration fixed for regular service. In no case may overtime exceed three hours a day or three consecutive times. • For every six days of work a worker shall be entitled to one day of rest, at least, with full wages. • Workers shall be entitled to vacations of not less than twenty days a year. • (57) Wages shall be fixed in the respective budgets, and their amount may not be decreased while a given budget is in effect. • In no case may wages be lower than the minimum for workers in general in the Federal District and in agencies of the Republic. • Equal wages shall be paid for equal work, without regard to sex. • Withholdings, discounts, deductions, or attachments from wages may be made only in those cases provided by law. • The appointment of personnel shall be made by systems which permit a determination of the skills and aptitudes of applicants. The State shall organize schools of public administration. • Workers shall be entitled to the rights of a classification scale so that promotions may be made on the basis of skills, aptitudes, and seniority. • Workers may be suspended or discharged only on justifiable grounds, for reasons prescribed by law. • In the event of unjustifiable discharge, a worker has the right to choose between reinstatement in his work or to appropriate indemnity, determined by legal proceedings. In case of abolishment of positions, the affected workers shall have the right to another position equivalent to the one abolished or to an indemnity. • Workers shall have the right to associate together for the protection of their common interests. They may also make use of the right to strike after first complying with requirements prescribed by law, with respect to one or more offices of the public powers, whenever the rights affirmed by this Art are generally and systematically violated. • Social security shall be organized on the following minimum bases: • It shall cover work accidents and occupational diseases, nonoccupational illness and maternity; and retirement, disability, old age, and death. • In case of accident or illness, the right to work shall be retained for the time specified by law. • Women shall be entitled to one month's leave prior to the approximate date indicated for childbirth and to two months' leave after such date. During the nursing period, they shall have two extra rest periods a day, of a half hour each, for nursing their children. In addition, they are entitled to medical and obstetrical attention' medicines, nursing aid, and infant care services. • Members of a worker's family shall be entitled to medical attention and medicines, in those cases and in the proportions specified by law. • Centers are to be established for vacations and convalescence, as well as economy stores for the benefit of workers and their families. • Workers will be allotted low-cost housing for rent or sale, in accordance with previously approved programs. • Individual, collective, and interunion disputes shall be submitted to a federal tribunal of conciliation and arbitration to be organized as provided in the regulatory law. • Disputes between the federal judicial branch and its employees shall be settled by the plenary Supreme Court of Justice of the Nation. • Military and naval personnel and members of the public security corps, and personnel of the foreign service, shall be governed by their own laws. • The law shall determine what positions are to be regarded as those of personal trust (de confianza). Persons who hold such positions shall be entitled to the benefits of measures for the protection of wages and social security. (Note: A transitory Art of the amendment states that until the respective regulatory law is enacted, the Statute for Workers in the Service of the Powers of the Union shall remain in effect insofar as it is not contrary to the present amendment.) Art 123 The Congress of the Union, without contravening the following basic principles, shall formulate labor laws which shall apply to: • Workers, day laborers, domestic servants, artisans (obreros, jornaleros, empleados domésticos, artesanos) and in a general way to all labor contracts: • The maximum duration of work for one day shall be eight hours. • (51) The maximum duration of nightwork shall be seven hours. The following are prohibited: unhealthful or dangerous work by women and by minors under sixteen years of age; industrial nightwork by either of these classes; work by women in commercial establishments after ten o'clock at night and work (of any kind) by persons under sixteen after ten o'clock at night. • The use of labor of minors under fourteen years of age is prohibited. Persons above that age and less than sixteen shall have a maximum work day of six hours. • For every six days of work a worker must have at least one day of rest. • During the three months prior to childbirth, women shall not perform physical labor that requires excessive material effort. In the month following childbirth they shall necessarily enjoy the benefit of rest and shall receive their full wages and retain their employment and the rights acquired under their labor contract. During the nursing period they shall have two special rest periods each day, of a half hour each, for nursing their infants. • The minimum wage to be received by a worker shall be general or according to occupation. The former shall govern in one or more economic zones; the latter shall be applicable to specified branches of industry or commerce or to special occupations, trades, or labor.The general minimum wage must be sufficient to satisfy the normal material, social, and cultural needs of the head of a family and to provide for the compulsory education of his children. The occupational minimum wage shall be fixed by also taking into consideration the conditions of different industrial and commercial activities Farm workers shall be entitled to a minimum wage adequate to their needs.The minimum wage is to be fixed by regional committees, composed of representatives of the workers, employers, and the Government, and will be subject to approval by a national committee, organized in the same manner as the regional committees. • Equal wages shall be paid for equal work, regardless of sex or nationality. • The minimum wage shall be exempt from attachment, compensation, or deduction. • (52) Workers shall be entitled to a participation in the profits of enterprises, regulated in conformity with the following rules: • A national committee, composed of representatives of workers, employers, and the Government, shall fix the percentage of profits to be distributed among workers. • The national committee shall undertake research and make necessary and appropriate studies in order to become acquainted with the general conditions of the national economy. It shall also take into consideration the need to promote the industrial development of the country, the reasonable return that should be obtained by capital, and the necessary reinvestment of capital. • The committee may revise the fixed percentage whenever new studies and research so justify. • The law may exempt newly established enterprises from the obligation of sharing profits for a specified and limited number of years for exploration work and other activities so justified by their nature or peculiar conditions. • To determine the amount of the profits of each enterprise the basis to be taken is the taxable income according to the provisions of the income tax law. Workers may submit to the appropriate office of the Secretariat of Finance and Public Credit any objections they may deem pertinent, in accordance with procedure indicated in the law. • The right of workers to participate in profits does not imply the power to intervene in the direction or administration of an enterprise. • Wages must necessarily be paid in money of legal tender and cannot be paid in goods, promissory notes, or any other token intended as a substitute for money. • Whenever, due to extraordinary circumstances, the regular working hours of a day must be increased, one hundred percent shall be added to the amount for normal hours of work as remuneration for the overtime. Overtime work may never exceed three hours a day nor three times consecutively. Persons under sixteen years of age and women of any age may not be admitted to this kind of labor. • In any agricultural, industrial, or mining enterprise or in any other kind of work, employers shall be obliged to furnish workmen comfortable and hygienic living quarters for which they may collect rent that shall not exceed one half percent monthly of the assessed valuation of the property. They also must establish schools, hospitals, and any other services necessary to the community. If the enterprise is situated within a town and employs more than one hundred workers, it shall be responsible for the first of the above obligations. • In addition, in these same work centers, when the population exceeds 200 inhabitants, a tract of land of not less than five thousand square meters must be reserved for the establishment of public markets, the erection of buildings destined for municipal services, and recreation centers. Establishments for the sale of intoxicating liquors and houses for games of chance are prohibited in all work centers. • Employers shall be responsible for labor accidents and for occupational diseases of workers, contracted because of or in the performance of their work or occupation; therefore, employers shall pay the corresponding indemnification whether death or only temporary or permanent incapacity to work has resulted, in accordance with what the law prescribes. This responsibility shall exist even if the employer contracts for the work through an intermediary. • An employer shall be required to observe, in the installation of his establishments, the legal regulations on hygiene and health, and to adopt adequate measures for the prevention of accidents in the use of machines, instruments, and materials of labor, as well as to organize the same in such a way as to ensure the greatest possible guarantee for the health and safety of workers as is compatible with the nature of the work, under the penalties established by law in this respect. • Both employers and workers shall have the right to organize for the defense of their respective interests, by forming unions, professional associations, etc. • The laws shall recognize strikes and lockouts as rights of workmen and employers. • Strikes shall be legal when they have as their purpose the attaining of an equilibrium among the various factors of production, by harmonizing the rights of labor with those of capital. In public services it shall be obligatory for workers to give notice ten days in advance to the Board of Conciliation and Arbitration as to the date agreed upon for the suspension of work. Strikes shall be considered illegal only when the majority of strikers engage in acts of violence against persons or property, or in the event of war, when the workers belong to establishments or services of the Government. • Lockout shall be legal only when an excess of production makes it necessary to suspend work to maintain prices at a level with costs, and with prior approval of the Board of Conciliation and Arbitration. • Differences or disputes between capital and labor shall be subject to the decisions of a Board of Conciliation and Arbitration, consisting of an equal number of workmen and employers, with one from the Government. • (53) If an employer refuses to submit his differences to arbitration or to accept the decision rendered by the Board, the labor contract shall be considered terminated and he shall be obliged to indemnify the worker to the amount of three months' wages and shall incur any liability resulting from the dispute. This provision shall not be applicable in the case of actions covered in the following Sec. If the refusal is made by workers, the labor contract shall be considered terminated. Winslow Taylor – value of vagueness

  13. Pemex and Mexican Constitution Pemex -- "bulwark of Mexican sovereignty” • Constitution Article 27: hydrocarbon monopoly • Deepwater exploration / private investment • 2010 • $3.8 billion in losses • Supreme Court decision Sam Wellborn

  14. Zapatista National Liberation Army: “everything for everyone, nothing for ourselves.” Chiapas

  15. Constitutional reform (2002) … 2000 Fox elected Feb 1996San Andres Jan 1994uprising 1998raids Mar 1999consultations 2002Const amended April 1995talks 1996-1997protests “What happened to PRI? [Sam Wellborn] “How long 1917 Const? [Jeff]

  16. Mexican Constitution, Article 2 (as amended 2002) Article 2 - The Mexican nation is unique and indivisible. The nation has a multicultural composition, originating in its indigenous people, who are descended from people who lived in the current territory of the country, who live in it now, and who keep their own social, economic, cultural, and political institutions or parts of these. … Communities of indigenous people are those that form a social, economic, and cultural unit, situated in a territory, and recognize authorities in agreement with their traditions and customs. The right of indigenous people to self-determination will be exercised in a constitutional way that assures national unity. The recognition of indigenous people and communities will be made in the constitutions and laws of federated entities, which will take them into account … ethnolinguistic criteria, and physical location. A. This Constitution recognizes and guarantees the right of indigenous peoples and communities to self-determination, and, in consequence, autonomy to: I. Decide their internal forms of living and social, economic, political, and cultural organization. II. Apply their own standards in regulation and solution of their internal conflicts, subject to the general principles of this Constitution, respecting individual guarantees, human rights, and, in a relevant manner, the dignity and completeness of women. The law will establish the cases and procedures of validation by the appropriate judges or courts. III. Elect, in accord with their traditional standards, procedures, and practices, authorities or representatives for the exercise of their own forms of internal government, guaranteeing the participation of women in conditions of equality to those of men, in a way that respects the Federal Pact and the sovereignty of the states. IV. Preserve and enrich their languages, awareness of their heritage, and all the elements that constitute their culture and identity. VIII. Accede fully to the jurisdiction of the State to guarantee those rights, in all trials and proceedings in which it takes part, individually or collectively. The State will take into account their customs and cultural specifics, respecting the precepts of this Constitution. Indigenous people have at all times the right to be assisted by interpreters and defenders who are acquainted with their language and culture. B. The Federation, states, and municipalities, to promote equal opportunity for indigenous people and eliminate any discriminatory practice, will establish the institutions and determine the necessary policies to guarantee the rights of indigenous peoples and the complete development of their people and communities. These will be designed and operated together with them. “exclusion of the ‘use and benefit of the land’”?

  17. Constitutional challenge … Article 135. The present Constitution may be added to or amended. In order that the additions or amendments shall become a part thereof, it shall be required that the Congress of the Union, by a vote of two thirds of the individuals present, agree to the amendments or additions and that they be approved by a majority of the legislatures of the States. The Congress of the Union or the Permanent Committee, as the case may be, shall count the votes of the legislatures and shall announce those additions or amendments that have been approved. [As amended on October 11, 1966, published in the Diario Oficial of October 21, 1966.] Basis for challenge: (1) ILO Conv 169 on Indigenous Peoples, (2) super-majority voting in state legislatures

  18. Mexican Supreme Court[11 judges / 15 year terms] Draft opinion (Rapporteur) • Decision (syllogism) • Antecedents (minor premise) • Considerations (major premise) • Resolution (conclusion) Public hearing New decision Court decision (dissent / concur)

  19. What are “jurisprudential theses”?decisiones ejecutorias / jurisprudencia Constitutional Controversy 82/2001 (JP 39/2002): No judicial review of federal constitutional amendment procedure – Congress and state legislatures “are performing a sovereign function, exempt from any kind of external control” Constitutional Controversy 82/2001 (JP 40/2002): A constitutional controversy may not be used to challenge federal constitutional amendment procedure – Article 105(1) authorizes constitutional challenges among co-existent federal entities and “does include the Constitutional body empowered by Article 135”

  20. End

  21. Origins of LatAm civil codes … rationalist, utopian, and highly individualistic values of the Enlightenment and French Revolution

  22. French “code civil” (1804) Haiti (1825) Spanish Civil Code (1889) Bolivia (1831) • Argentina Civil Code • 30% Brazil draft • 17% Austria profs • 7% Spanish comment • 4% Chile CC • 4% French CC • 3% French comment • 2% German comment • 1% Louisiana CC • 1% Belgian comment • 1% Uruguay draft • 30% miscellaneous Brazil draftt (1856) Chile (1852) Argentina (1869) Andres Bello (1781-1865)

  23. Constitutional origins …

  24. US Constitution (1791) French Declaration Rights of Man (1789) Mexico (1824) Mexico (1917) Spanish Constitution (1812) • Equality • Standing committee • Special courts • State of siege Brazil (1824) • Separation of powers • Federalism • Individual liberties • Judicial review Argentina (1853)

  25. “There, one opinion of Marshall is worth as much as a law.” Ignacio Vallarta(1830-1893)

  26. The 1917 Mexican constitution was modeled in large part after the U.S. Constitution. Yet the Mexican constitution is much easier to amend than the U.S. Constitution. Ben Austrin-Willis

  27. What is relief in amparo action? injunction pendente litis inter partes erga omnes

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